Jones v. Cox

| Mo. | Sep 15, 1841

'Opinion of the Court by

Scott, Judge.

The defendants in error brought suit by petition in debt ag£uust the plaintiff in • error, and obtained judgment. ■ It appears that the petition .commenced by stating that the plaintiffs were the legal owners of two notes against the defendant, and then set out. two notes and concluded in the usual form. The summons sued out on the petition omitted the name of one of the plaintiffs. At the return term of the writ, the plaintiff in error moved to set aside the writ for the variance between it and the petition ; which motion was sustained, and the court immediately thereafter gave the defendants in error'leave to amend their writ by inserting the name omitted; to which the plaintiff in error objected. The plaintiff in error then demurred specially to the petition, assigning as a cause for the demurrer, that the petition was double, in this, that it contained two causes of action in one and the same count. The demurrer was overruled, and judgment for the defendants in error, from which they have appealed to this court. The errors complained of are: the granting of leave to amend the writ, and the overruling of the demurrer. If a variance between the declaration and writ can be taken advantage of at all, it is not seen what principle a party can avail himself of it by a motion to quash ; according to our practice the declaration is filed before the writ issues ; and the declaration being the foun-Nation °f wrib and accompanying it, the party would look to it in order to ascertain the nature of the demand against him, and by whom it was instituted. A variance between it and the summons cannot mislead him. As to . , . . , the objection that the court set aside the writ, and then gave leave to amend, this was irregular, as it appears that the court the same instant gave the party leave to amend. The ProPer construction, of the act of the court must be, that the motion to set aside was overruled, and leave given to amend. This is the legal effect of it. For the leave to amend impliedly set aside the order quashing the writ, and as the plaintiff in error was present, and objected at the time, he cannot complain of any surprise or injury occasioned by quashing the writ, and afterwards giving leave to amend it. The court properly gave leave to the party amend, and as the amendment was of such a nature as to produce no surprise to the plaintiff in error, he was not entitled to a continuance. As to the objection that there were two notes set out in the petition, it is not perceived on principle it is based. Several counts on different-bonds f ... . . , , . . . _ , , \ be joined an the same declaration m an action oi debt; 1 Saunders, 288 ; and in a petition in debt, the several bonds or notes may be considered as several counts.

note or maf be set out m a petition in several bonds or notes may be considered ag several counts. .

'*■,.1 ♦! ty* i Let the judgment be afiirmed.